Summary: Ms X complains the Council was at fault in how it responded to her complaints of nuisance caused by a takeaway food business operating in premises next to her home. We have found no evidence of fault in the way the Council considered these matters so have completed our investigation.

The complaint

1. The complainant whom I shall refer to as Ms X complains the Council has failed to respond to her complaints of nuisance caused by a takeaway food business (business) operating in premises next to her home. Ms X refers to noise from an extractor fan, rats in the walls between the buildings and in the wider area, waste fat being poured down drains, cooking odour, noise from a delivery driver slamming vehicle doors and fly tipping and rubbish nearby.
2. Ms X says the nuisance impacts unacceptably on her well-being and amenity and that of her partner Mr Y.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

5. I have considered the information provided by Ms X and have discussed the complaint with her on the telephone. I have considered the Council’s response to my enquiries.
6. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

7. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
8. Typical things which may be a statutory nuisance include:
• noise from premises or vehicles, equipment or machinery in the street
• smoke from premises
• smells from industry, trade or business premises
• artificial light from premises
• insect infestations from industrial, trade or business premises
• accumulation of deposits on premises
9. For the issue to count as a statutory nuisance, it must:
• unreasonably and substantially interfere with the use or enjoyment of a home or other premises; and/or
• injure health or be likely to injure health.
10. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer, or EHO) to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact if a nuisance occurs outside normal working time.
11. Once the evidence-gathering process is complete, the environmental health officer(s) will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists.
12. Councils can decide to take informal action if the issue complained about is causing a nuisance, but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation. If the council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice. If the nuisance is noise from premises, the council may delay service of an abatement notice for a short period, to attempt to address the problem informally.
13. A member of the public can also take private action against an alleged nuisance in the magistrates’ court. If the court is persuaded they are suffering a statutory nuisance, it can order the person or people responsible to take action to stop or limit it. This process does not involve the council, but it is good practice for councils to draw a complainant’s attention to their right to private action under section 82.

The Council’s Environmental Protection Nuisance Policy

14. The Council has three policies for dealing with complaints of nuisance. These are the Final Environmental Policy, Statutory Nuisance Enforcement Policy and Corporate Enforcement Policy . In the policies the Council’s aim is to work to increase the quality of life of the district and its residents. It will seek to achieve that aim partly by enforcement of its powers under the EPA when investigating and controlling statutory nuisances.
15. The Council has a standard letter procedure for the first stages of dealing with nuisance complaints. It contacts both parties confirming the nature of complaint, giving advice on how to avoid nuisance. The Council confirms that if the problem reoccurs then the complainant should keep a nuisance record sheet (sheet) and contact the case officer to start further investigation. The Council does not either support or refute the complaint at that point.
16. The Council says if the problems recur, aided by the sheets it can arrange to carry out monitoring. If it establishes a nuisance then it will take further action which are normally discussions to agree an action plan. Or if it does not have the necessary cooperation to move forward it will serve a statutory abatement notice to apply legal sanctions.
17. The letters advise complainants to return the sheets within six weeks otherwise the Council assumes there is no longer an issue and will close the case.

What happened

18. This chronology of events does not include everything that happened.
19. In April 2019 Ms X complained to the Council’s Environmental Protection the business operators were pouring waste oil or fat down the drains which attracted the rats to her property and nearby area. An officer visited the site but found no evidence to support Ms X’s claims. The Council told Ms X and closed the case.
20. Ms X reported noise from the business’s extractor fan in September 2019. The Council sent Ms X sheets to complete when there was noise from the fan. The Council told Ms X to return the sheets within six weeks or it would close the case. Ms X sent the sheets in October 2019. The Council contacted Ms X to arrange a time to monitor the noise from her property. Ms X did not respond, and the Council closed the case in November 2019.
21. Ms X made a further report of rats at her property and the nearby area. An officer visited in January and February 2020 but found no obvious signs of rat activity. The officer sent emails to Ms X to inform her and arrange another date for a visit. Ms X did not respond, and the Council closed the case.
22. In March 2020 Ms X reported noise nuisance from the extractor fan. An officer advised Ms X that due to the COVID-19 pandemic the Council decided to minimise the risk to the public and officers by not carrying out non-emergency site visits. The officer said the Council could not visit to monitor but would write to the business about the concerns raised. The business considered the complaint unjustified and said the equipment was working correctly. The Council decided the case was a not an emergency and so not expedient to pursue further due to the national crisis. The Council informed Ms X.
23. Ms X complained to the Council in May 2020 the problems had not been resolved. Ms X said she reported nuisances from the business to Environmental Protection but received no response causing her frustration and annoyance. An officer contacted Ms X to discuss her concerns. The officer explained Ms X had not responded to letters and emails sent to her, so the Council closed her cases.
24. The Council agreed to carry out outdoor monitoring in June 2020 due to a slight lifting of lockdown restrictions, but still could not do internal monitoring. An officer visited the outside of Ms X’s property and reported no evidence of a noise nuisance.
25. The Council responded to Ms X’s complaint and reminded her of its procedures for dealing with reports of nuisance. It said Ms X did not respond to contact from officers, so the Council closed her cases. The Council told Ms X the result of the officer’s visit and considered it unlikely there was statutory nuisance. The Council said it would carry out internal monitoring when it became possible.
26. Mr Y called the Council’s out of hours service in early July 2020 reporting issues with rats, noise, drainage, and a delivery lorry. The Council agreed to do further monitoring and contacted Ms X to arrange a suitable date. Ms X did not respond so the Council said it would close her complaint.
27. Ms X complained to the Council in July 2020 officers had not contacted her as promised. An Environmental Protection officer contacted Ms X and explained the calls made to her. The officer discussed Ms X’s current issues. These included fan noise, rats, fly tipping on an railway embankment nearby, general waste in the area, cooking fat in drains and noise from a delivery driver slamming a car door. The officer agreed to do an outside visit and inspection for rats.
28. The officer visited Ms X’s property the same day and told Ms X of the result. The officer reported the business owners had reviewed and upgraded measures at the building. The officer witnessed no unusual sound and little odour coming from the business at the rear of Ms X’s property. The officer spoke to the business owners about Ms X’s complaint about a delivery driver. The officer closed Ms X’s noise complaint and reopened new cases for noise, odour, rats, and waste cooking fat as each issue needed reporting on separately.
29. The officer contacted the water company to arrange sewer cleaning and repairs, the local railway company to arrange to clear the fly tipping and the Council’s waste service to clear waste in the area. The officer sent Ms X sheets to complete to record the issues she raised. Ms X returned the sheets in August 2020 and confirmed the main issue was noise from the extractor fan. The Council considered the sheets, closed the odour complaint, and continued with the noise issue.
30. An Environmental Protection officer contacted Ms X to discuss her noise complaint. The officer advised it unlikely the Council would determine a statutory noise or odour nuisance. The officer agreed to visit her property to externally monitor noise from the extractor fan on 29 September 2020. Ms X agreed to ensure officers could easily access the yard behind her property. Ms X contacted the Council as she realised the business would be closed that day so did not consider officers could properly assess the impact of the fan. The Council decided not to reschedule the monitoring as it intended to do controlled noise monitoring.
31. The Council carried out the noise monitoring and wrote to Ms X in October 2020 explaining the outcome. The Council found no likelihood of a noise or odour nuisance in the habitable parts of her house. It found the only likely window to be affected was a bathroom window. But as it was a non-habitable room it expected her to take reasonable action by shutting the window. The Council confirmed the extractor fan was in the kitchen of the adjoining building so ‘the perception was of noise from the flue duct’. The duct had no contact with Ms X’s property and was on the wall of the business. The officer said the flue had no direct impact on Ms X as it was not in direct line of sight from a rear bedroom window. The Council closed Ms X’s noise complaint and advised her of section 82 of the EPA which allowed her to take her own action against the business.
32. Ms X complained to the Council in November 2020 as she was unhappy with the outcome of the monitoring. Ms X’s raised concerns including her reports of the business pouring fat down the drain. An officer found no evidence, but her landlord and water company had found otherwise when unblocking the drains. Ms X reported the business kept the extractor fan on all the time and despite filing in monitoring forms the cases had been closed. Ms X said there were still issues with rats accessing holes in walls between the properties.
33. Ms X said the Council had not dealt with her concerns about nuisance from a delivery driver. Ms X disputed the findings of the noise monitoring as officers came on a day when the business was closed. Ms X said the fan noise was worse and could be heard throughout all her house.
34. The Council responded to Ms X’s complaints and said officers visited the business after she reported an issue with waste fat. The officers found no evidence of fat being poured down the drain and no evidence of rat activity at the site. The Council confirmed the business used a fat interceptor to collect fat which was then removed from the site. The Council said the business had contracts for both pest control and waste disposal. The Council confirmed it passed complaints about the drains to the water company who identified and addressed any issues. The Council contacted the local railway company who removed the fly tipping.
35. The Council confirmed officers visited to deal with her complaints about rats and evidence now showed improvements in the area. The Council noted her complaint about a delivery driver, but she had provided limited information. It confirmed the incident took place on a public highway and issues with vehicles were outside of the laws on nuisance. The Council said it asked the business to place a notice at the building to ensure customers and staff were mindful of nearby residents.
36. The Council explained its procedures for monitoring cases, and it closes them if complainants do not return sheets within six weeks. Ms X had not done so or responded to the Council’s contacts with her. Because of this it had closed some of the cases she raised. The Council also explained difficulties carrying out monitoring due to the COVID-19 pandemic.
37. The Council advised officers had contacted the business about Ms X’s recent noise complaint. The Council agreed to carry out controlled noise monitoring as an appropriate way of assessing the noise from the extractor fan. The fan was on for 15 minutes at different settings. The Council said it provided an opportunity to take measurements when the extraction unit was not operating so it could assess the general ambient background noise. The Council did not consider there was statutory noise nuisance.
38. The Council confirmed there were many factors to consider when dealing with complaints of noise and nuisance. It must consider any special circumstances of each case. The factors to consider include the nature, severity, frequency and duration of the noise and any possible undue sensitivity of the complainant. The Council agreed to carry out internal monitoring of the noise. But due to concerns about the threatening and abusive behaviour of Mr Y over the complaints officers would be accompanied by Police officers. The Council asked Ms X to provide suitable dates for it to carry out the monitoring.
39. The Council sent Ms X a reminder letter in January 2021 as she did not respond. The Council said it would close the case if she did not reply. Ms X provided suitable dates in February 2021 and officers carried out noise monitoring accompanied by Police officers.
40. The Council wrote to Ms X in March 2021 explaining it found no evidence of a statutory noise nuisance and did not propose to investigate further. However, the Council had a duty to monitor the district from time to time so intended to carry out an unannounced visit to the business in the future to ensure the noise levels complied with those required. The Council advised Ms X again of her right to take her own action under section 82 of the EPA.
41. The Council reports Ms X made further contact in May 2021 saying the noise issues continue and requested officers call her back. The Council says officers have called Ms X but been unsuccessful in making contact.

The Council’s comments on the complaint

42. The Council says it made efforts well beyond its usual practice and procedures in this case. Officers spoke to Ms X by telephone, face to face, sent letters and emails despite the lack of cooperation and responses from Ms X when trying to arrange monitoring visits. The threats from Mr Y caused delays as officers could only attend the property with Police officers. The Council also faced difficulties caused by the COVID-19 pandemic which changed Council practice and procedures during lockdown. The Council says it told Ms X of the impact on its services.
43. The Council says it carried out three separate investigations into the complaints made by Ms X which was well beyond its remit and duty. The Council determined there was no statutory nuisance caused by the business. It accepts there is some noise, but it did not result in a determination of a statutory nuisance for the Council to take enforcement action.
44. The Council explains it carried out the controlled noise monitoring on a day when the business was closed. This allowed officers to run the extractor fan across its full range of speed settings in an efficient and effective monitoring exercise. The Council considers it would have been less effective if run on a working day which would have been disrupted and disruptive to the business.
45. The Council considers the results of the noise output against the extractor settings do not show a statutory nuisance from an outdoor reading. In addition, there was minimal transmission of noise through the fabric of both buildings from the proximity and connectivity of the equipment to Ms X’s home. The Council says by adding in the attenuation properties of the fabric of both buildings it reduces any internal impact to Ms X’s property from the noise measured to below those required by recognised guidelines.

My assessment

46. The Council provided documents to show it has responded to and investigated Ms X’s complaints of nuisance according to its procedures and practices. The Council does not consider there is a statutory nuisance based on the evidence officers have witnessed so far.
47. Ms X disagrees with the Council’s decision there is no evidence of a statutory nuisance, but the decision is a matter of the officers’ professional judgement. We cannot question the merits of the decision itself without evidence of fault in the way it was made. I do not consider there is faut in this case.
48. This is because officers visited the outside of Ms X’s property when it could to investigate the alleged nuisance. The officers considered the information provided by Ms X including her nuisance record sheets. This is according to the Council’s policy and practice and the requirements of the EPA to investigate. The officers arranged for action to be taken to resolve her concerns about rats, waste, sewers, and fly tipping. The officers also raised Ms X’s concerns with the business including the delivery driver although it was outside the Council’s remit.
49. The evidence shows the Council carried out internal noise monitoring on a day when the business was closed, but officers did not consider there was evidence of a statutory noise nuisance. The decision on when it considered the best day to carry out the monitoring, and the outcome of the monitoring are decisions officers are entitled to make. There is no evidence of fault in the way the Council reached these decisions from the documents I have seen.
50. It is unfortunate that Ms X did not always respond to the contacts made by officers or return the sheets within the timescales requested. It is also unfortunate Mr Y’s behaviour and changes to procedures during the COVID-19 pandemic meant it took the Council longer to investigate on occasions, but I cannot say the delays were due to any fault by the Council.
51. The evidence shows the Council advised Ms X about section 82 of the EPA which is good practice by the Council. It is route Ms X may wish to consider taking to deal with her concerns.

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Final decision

52. I am completing my investigation. I have found no evidence of fault by the Council in the way it has investigated and responded to Ms X’s complaints of nuisance caused by a business next to her property.

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Investigator's decision on behalf of the Ombudsman